Scalia’s originalism

Main points

We presented Scalia’s originalism by contrasting it with Justice Rehnquist’s version. We also discussed a variety of criticisms of this approach to interpreting statutes and the Constitution.

Original meaning vs. intent

Scalia and Rehnquist both reject the idea that the Constitution should be interpreted as a “living” document. But while Rehnquist treats the both the language and the intent of the authors of the Constitution as basically the same, Scalia splits the two. He thinks we should interpret the Constitution, or any old statute, according to its original meaning. That is, we should understand these documents as meaning what the people they were addressed to would have understood them to mean. This is extremely clever and enables Scalia to avoid a host of difficulties with original intent.

Note that precedents, past court decisions, have no special status in determining the original meaning of a law. So they aren’t a source of law, as I understand Scalia’s position. Nonetheless, he has distanced himself from those who give no weight at all to maintaining consistency in the law, though I’m not sure how he thinks that can be rendered consistent with his originalism.

What’s so great about original meaning?

I myself think that Scalia is on solid ground in saying that he has described a sensible way of interpreting a document and particularly a statute or written constitution: look at how it would have been understood by the people it was addressed to. He adds some additional reasons for thinking it should be used in the specific case of legal interpretation. Among these are considerations of fairness (people can only comply with the laws if they understand what they mean) and democracy (elected bodies should make laws and not judges).

Joseph wasn’t sure the point about fairness was relevant. Wouldn’t it be easier for people now to predict what the law means if our interpretations of the law reflected current standards rather than those from hundreds of years ago? Good question!

It’s worth pondering just why being democratic is thought to be such an important thing as well. This is more a matter of procedure than substance: there’s what we regard as the right result and what we regard as the proper, democratic procedure for achieving that result. The two can interact in various ways. You can like the procedure but dislike the outcome or vice versa.

Tricky, tricky

Joseph imagined converting the meaning of a document like the Constitution from the way it was originally understood to an up-to-date meaning. How? Just re-adopt the Constitution every year.

The thrust of that remark was that this procedure would be a little silly. Since we’re interpreting the Constitution for our own uses, why not interpret it according to our own standards? That was where he was going with this. It’s a good question and a fundamental challenge to the idea of originalism.

Update: Scalia on BrownAdded March 26.

One of the toughest questions for originalists involves the civil rights cases, such as Brown v. Board of Education. Those cases relied on the Fourteenth Amendment’s equal protection clause.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But the Congress that passed the Fourteenth Amendment ran the District of Columbia which had racially segregated schools. So it’s hard to argue that the Amendment was originally understood to rule out segregated schools. What’s more, the decision itself has lines like this:

In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. (Brown v. Board of Education, 493.)

So that’s rough for the originalists. (Unless they want to come out against Brown v. Board of Education, of course, which would be hard for a different reason.) But Scalia doesn’t think it is a problem. Here’s a transcript from the oral arguments on March 26, 2013 in the gay marriage case, Hollingsworth v. Perry.

JUSTICE SCALIA: … I’m curious, when -­ when did -- when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes -- some time after Baker, where we said it didn’t even raise a substantial Federal question? When -- when -- when did the law become this?

MR. OLSON: When -- may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At -- at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.) (pp. 38–9)

Gosh, I would have loved to hear more about that. I suppose he’s written his reasoning down somewhere. Anyway, there you have it.